Opinion
9:14-CV-0096 (MAD/TWD)
04-17-2015
FRANKLIN COBBS, JR., Plaintiff, v. S. LAMARE, Defendant.
APPEARANCES: FRANKLIN COBBS, JR., 08-A-3161 Plaintiff pro se Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: HELENA LYNCH, ESQ.
APPEARANCES: FRANKLIN COBBS, JR., 08-A-3161
Plaintiff pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
OF COUNSEL: HELENA LYNCH, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION and ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Franklin Cobbs, Jr., an inmate of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges that a DOCCS employee harassed him. (Dkt No. 1.) Currently pending before the Court is Defendant's pre-answer motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 35.) For the reasons discussed below, I recommend that the Court grant Defendant's motion and dismiss this action without prejudice.
I. FACTUAL AND PROCEDURAL SUMMARY
Plaintiff was incarcerated at Upstate Correctional Facility ("Upstate"). (Dkt. No. 1 at 1.) He was taken to the Albany Medical Center in late 2013 when he suffered from kidney failure. Id. at 4. He was placed in an infirmary after returning to Upstate. Id. On January 15, 2014, Plaintiff filed a grievance alleging that Defendant "put his hands on" him when he was leaving the infirmary. Id. at 7. He further alleged that Defendant "hit [him] on the head over 5 times and [on his] chest w[here he] ha[d] a tube going t[o] [his] h[e]art." Id.
On January 29, 2014, Plaintiff commenced this action by filing a complaint. (Dkt. No. 1.)
The Superintendent of the facility denied Plaintiff's grievance two days later, on January 31, 2014. (Dkt. No. 35-3 ¶ 9; Dkt. No. 35-5 at 2.) Plaintiff appealed the decision to the Central Office Review Committee ("CORC") after filing his complaint in this action. (Dkt. No. 35-3 ¶ 11.)
Defendant now moves for summary judgment. (Dkt. No. 35.) Plaintiff opposes the motion. (Dkt. No. 40.) Defendant has filed a reply. (Dkt. No. 41.) Plaintiff has filed a sur-reply. (Dkt. No. 42.) For the reasons that follow, I recommend that Defendant's motion be granted.
II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id. at 273. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 & n.11 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
A fact is "material" only if it would have some effect on the outcome of the suit. Anderson, 477 U.S. at 248.
III. ANALYSIS
Defendant argues that this action must be dismissed because Plaintiff did not exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1996 ("PLRA"). (Dkt. No. 35-1.) Defendant is correct.
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (2006). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In New York state prisons, DOCCS has a well-established three-step inmate grievance program. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2013).
Generally, the DOCCS Inmate Grievance Program ("IGP") involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a). A representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance (Id. § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. § 701.5(b)(3). If an inmate alleges harassment by a DOCCS employee, the inmate's grievance may be sent directly to the facility's superintendent, thereby bypassing the first step. Id. § 701.8(b)-(d), (f).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to CORC for a decision under the process applicable to the third step. Id. § 701.5(c)(3)(I).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
If a prisoner has failed to properly follow each of the applicable steps prior to commencing litigation, he has failed to exhaust his administrative remedies. Woodford, 548 U.S. at 93. Receiving a decision from CORC after filing a federal lawsuit does not satisfy the PLRA's requirement that administrative remedies be exhausted before filing suit, and any such action much be dismissed without prejudice. Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002).
Here, Plaintiff did not exhaust his administrative remedies before commencing this litigation. Plaintiff brought a grievance to the facility's Superintendent, but he filed his complaint in this action before appealing to CORC. Plaintiff admits that he did not wait to "receive a final determination from CORC." (Dkt. No. 39 ¶ 5.) Thus, Plaintiff had not yet exhausted all administrative remedies with regard to his claim against Defendant at the time he filed this suit.
Plaintiff's failure to exhaust, however, does not end the review. The Second Circuit has held that a three-part inquiry is appropriate where a prisoner has failed to exhaust his available administrative remedies. Hemphill v. New York, 380 F.3d 680, 686, 691 (2d Cir. 2004).
The Second Circuit has not yet decided whether the Hemphill rule has survived the Supreme Court's decision in Woodford, 548 U.S. 81. Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011).
First, "the court must ask whether [the] administrative remedies [not pursued by the prisoner] were in fact 'available' to the prisoner." Hemphill, 380 F.3d at 686 (citation omitted). Here, Plaintiff argues that administrative remedies were unavailable to him because he "was not given grievance forms or [the Inmate Grievance Procedures] handbook the [w]hole [time] [he] was in the [i]nfirmary." (Dkt. No. 42 at 1.) However, Plaintiff admits that he took advantage of the expedited grievance process and filed a grievance directly with the facility's Superintendent on January 15, 2014. (Dkt. No. 1 at 7.) The Superintendent made a timely determination on January 31, 2014. (Dkt. No. 35-3 ¶ 9; Dkt. No. 35-5 at 2.) Plaintiff then appealed the superintendent's decision to CORC. (Dkt. No. 35-3 ¶ 11.) Thus, there is no genuine dispute that the administrative grievance process was available to Plaintiff.
Second, if administrative remedies were available,
the court should . . . inquire as to whether [some or all of] the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it . . . or whether the defendants' own actions inhibiting the [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense.Hemphill, 380 F.3d at 686 (citations omitted). Here, Defendant preserved the exhaustion defense by asserting it in his motion. (Dkt. No. 35-1; Jones, 549 U.S. at 216; Alster v. Goord, 745 F. Supp. 2d 317, 332 (S.D.N.Y. 2010).) There is no evidence in the record that Defendant's own conduct estops him from asserting the exhaustion defense. Cf. Ziemba v. Wezner, 366 F.3d 161, 162-64 (2d Cir. 2004) (district court directed to consider whether defendants were estopped from asserting exhaustion defense where inmate alleged that he was beaten, threatened, denied grievance forms, and transferred to another prison).
Third, if the remedies were available and defendant did not forfeit, and was not estopped from raising, the non-exhaustion defense, "the court should consider whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with the administrative procedural requirements." Hemphill, 380 F.3d at 686 (citations and internal quotations omitted). Justification "must be determined by looking at the circumstances which might understandably lead . . . uncounselled prisoners to fail to grieve in the normally required way." Giano v. Goord, 380 F.3d 670, 678 (2d Cir. 2004).
Plaintiff argues that special circumstances exist because he "was unaware of the grievance procedures and had [a] lack of knowledge of the CORC appeal process." (Dkt. No. 42 at 1.) A plaintiff's failure to exhaust his remedies cannot be excused merely because "he did not know there were any other steps" in the grievance procedure. Smith v. City of New York, No. 12 Civ. 3303 (CM), 2013 U.S. Dist LEXIS 144122, at *56, 2013 WL 5434144, at *20 (S.D.N.Y. Sept. 26, 2013) (citation omitted). Here, Plaintiff in fact used the administrative grievance procedure, showing that he was aware of the grievance procedure and the CORC appeal process. Thus, there is no genuine dispute that Plaintiff was aware of the grievance procedure.
The Court will provide Plaintiff with a copy of this unpublished decision in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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Plaintiff also claims that along with having no "IGP Booklet on [h]ow to file a [g]rievance . . . [he] was be[ing] moved from jail to jail and take[n on] outside trips to [t]he medical center." (Dkt. No. 40 ¶ 5.) "[T]he mere fact that plaintiff has been transferred to another prison facility does not necessarily render the exhaustion requirement moot." Rodriguez v. Senkowski, 103 F. Supp. 2d 131, 134 (N.D.N.Y. 2000). Moreover, Plaintiff in fact filed a grievance and appealed it. Thus, his transfer is not a special circumstance justifying his failure to properly exhaust his administrative remedies before filing this lawsuit.
For the foregoing reasons, I recommend that Defendant's motion for summary judgment should be granted. An administrative grievance process was available to Plaintiff and he failed to exhaust administrative remedies before filing this suit against Defendant. Plaintiff was not prevented by the actions of prison officials, including the named Defendant, from filing a grievance or from pursuing his administrative remedies, including appealing to the Superintendent and appealing to CORC.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendant's motion for summary judgment (Dkt. No. 35) in this action be GRANTED based upon Plaintiff's failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a); and it is further
ORDERED that the Clerk provide Plaintiff with a copy of Smith v. City of New York, No. 12 Civ. 3303 (CM), 2013 U.S. Dist LEXIS 144122, 2013 WL 5434144 (S.D.N.Y. Sept. 26, 2013).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: April 17, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge